Abortion and the court: Emotion overcomes reason and law

In one fell swoop, five justices set back the cause of a woman's individual liberty and self-determination, as well as decades of established legal precedent.

By Martha Coakley and Constance L. Rudnick

In Gonzales v. Carhart, the Supreme Court committed the mortal sin of judges by allowing emotion to take precedence over reason and law. The majority of the court who voted to uphold Congress's Partial-Birth Abortion Ban Act seemed unduly influenced by graphic descriptions of a medical procedure that, by anyone's standards, is discomfiting.

The Supreme Court's majority opinion, written by Associate Justice Anthony Kennedy, culled from the evidence not one but two descriptions of the medical procedure that the court held could be banned by Congress. These two descriptions were followed by pages and pages describing the procedure in graphic detail, using terminology designed to offend even the most callous.

Until now, the several federal courts that considered the ban held it to be inconsistent with science, health and liberty under our Constitution. Labeling the procedure "brutal" and "inhumane," the court eviscerated years of established jurisprudence concerning abortion and passed moral judgment on women who choose to have an abortion.

The Gonzales decision significantly undermines rules of law established in virtually every single Supreme Court abortion case decided since Roe v. Wade. The court has repeatedly held that "the States (have the) power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health." A Republican-dominated Congress, despite substantial medical and scientific evidence to the contrary, decided that the banned procedure is NEVER used to preserve the health of a woman, and so no such exception is necessary.

While acknowledging that certain congressional findings were plainly wrong, and that there is disputed evidence on whether the banned procedure is indeed performed where the health of the woman is at stake, the majority held that "medical uncertainty" does not make the Partial-Birth Abortion Ban Act unconstitutional.

In concluding that no exception is required even where a woman's health is at stake, Justice Kennedy conveniently overlooked the fact that as recently as 2000 in Stenberg v. Carhart, the Supreme Court struck down as unconstitutional a similar Nebraska state law because it failed to include a health exception was required. How could the mere passage of seven years bring about diametrically opposed results? The answer lies in the composition of the court: specifically the departure of Justice Sandra Day O'Connor and the arrival of Justice Samuel Alito, a longtime opponent of a woman's right to choose.

It is clear, from Justice Kennedy's repeated confirmation of the ban as an expression of a state's right to protect and respect "life," "human life," "the life within the woman," and the "life of the fetus that may become a child," that we now live in a country where the government can decide to prefer an unborn fetus over its mother. This from a court that once (when abortion was a fundamental right) expressly said it could not and would not determine when "life" began until there was a consensus regarding that definition in medicine, philosophy and theology, and, at present, there is no such consensus.

The court's repeated reference to the morality of abortion directly contravenes language from the now virtually defunct Planned Parenthood v. Casey, where Justice O'Connor wrote: "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

Finally, in a demonstration of abject paternalism, the majority held that since there was evidence that some women "come to regret their choice to abort the infant [note use of word infant rather than embryo or fetus]," the state is justified in protecting the woman from herself, or rather from what some see as rampant immoral malpractice committed by thousands of trained physicians who recommend that an intact dilation and evacuation is the best procedure to address a pregnant woman's serious medical conditions.

The ramifications, long and short term, of this tragic decision are immense. Women have again been relegated to second-class citizens, after decades of efforts to foster equality. In one fell swoop, five justices set back the cause of a woman's individual liberty and self-determination, as well as decades of established legal precedent. The Gonzalez v. Carhart decision has put the extreme zealots remarkably closer to achieving their avowed goal: the criminalization of all abortions. The decision is neither evidence based nor wise.

Martha Coakley is the Attorney General of Massachusetts. Constance L.
Rudnick is professor of law at the Massachusetts School of Law at Andover.
She teaches constitutional law and legal ethics.